Körero Whakamauähara : Hate Speech New Zealand’s Human Rights Review Tribunal has drawn the following general conclusions from ICERD:69 • Regard must be had to the principles of the UDHR, which include the right to freedom of expression. • Criminal sanctions should be governed by the principles of legality, proportionality and necessity. • Article 4 imposes a mandatory obligation to sanction certain offences. • The prohibition of racist hate speech and freedom of expression should be seen as complementary and mutually supportive rights. Three categories of speech emerge from these treaties. The first concerns hate speech that must be prohibited. ICCPR article 20(2) requires the restriction of any speech that constitutes advocacy of national, racial or religious hatred if it incites discrimination, hostility or violence. Article 4 of ICERD goes even further, requiring criminalisation of racist hate speech. The second refers to speech that may be prohibited. ICCPR article 19 allows for the restriction of speech in the interest of “respect of the rights or reputations of others” or for the protection of national security or of public order, public health or morals. It is notable that the ICERD Committee has recommended that criminalisation of forms of racist expression should be reserved for serious cases, to be proven beyond reasonable doubt.70 The Committee observed with concern that broad or vague restrictions on freedom of speech have been used to the detriment of groups protected by the Convention.71 speech is expression or speech that does not give rise to criminal, civil or administrative sanctions, but still raises concern in terms of tolerance, civility and respect for the rights of others.73 States are not required to prohibit this type of speech, however this does not mean it is morally acceptable. This point was highlighted by the judge in the most recent decision under New Zealand’s hate speech laws:74 The law’s limits do not define community standards or civic responsibility. I would be disappointed if anything which this Court might say could be taken as indicative of what people of one race may feel at liberty to say and which people of the other are expected to brook. Regional human rights instruments The European Convention on Human Rights (ECHR), the American Convention on Human Rights, and the African Charter on Human and Peoples’ Rights provide for the equivalent protection and restrictions on freedom of expression. Article 10 of the ECHR which lists permissible restrictions on freedom of expression is longer than that under article 19(3) of the ICCPR. The European Court of Human Rights has used article 17 Prohibition of abuse of rights to restrict speech: Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention. The third category, which sits on the other side of the legal boundary, is lawful hate speech.72 Lawful hate 69 70 71 72 73 74 Wall v Fairfax [2017] NZHRRT 17 at [140]. Committee on the Elimination of Racial Discrimination, General Comment No 35: Combating racist hate speech, U.N. Doc. CERD/C/GC/35 (26 September 2013) at [12]: The Committee recommends that the criminalisation of forms of racist expression should be reserved for serious cases, to be proven beyond reasonable doubt, while less serious cases should be addressed by means other than criminal law, taking into account, inter alia, the nature of the impact on targeted persons and groups. The application of criminal sanctions should be governed by principles of legality, proportionality and necessity. Ibid., at [20]. United Nations General Assembly, Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, UN Doc A/67/357 (7 September 2012). Human Rights Council Annual report of the United Nations High Commissioner for Human Rights – Addendum report of the United Nations High Commissioner for Human Rights on the expert workshops on the prohibition of incitement to national, racial or religious hatred, UN Doc. A/HRC/22/17/Add.4 (11 January 2013) Annex: Rabat Plan of Action on the prohibition of advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence at [20]. Wall v Fairfax [2018] NZHC 104 at [97] citing Awa v Independent News Auckland Ltd [1997] 3 NZLR 590 (CA) at 598. 15